Citation Nr: 0004561 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 98-05 305A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for residuals of laceration, left middle finger. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from May 1975 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana, which denied claims by the veteran seeking entitlement to service connection for a right knee disorder and left middle finger laceration. It is noted that the appellant appeared at a hearing before the undersigned Member of the Board on November 18, 1999, at which time he testified with respect to the claims now at issue before the Board. A transcript of that hearing has been associated with the record on appeal. The Board notes that the RO, in its October 1997 rating decision, also denied entitlement to service connection for a left knee disorder, which the veteran properly appealed. However, during his November 1999 personal hearing, he withdrew that claim from appellate review. Therefore, it is not before the Board. See 38 C.F.R. § 20.204(b) (1999). FINDINGS OF FACT 1. The claims file contains no competent evidence indicating that the veteran incurred a right knee injury or a laceration to the left middle finger during service. 2. The claims file contains no competent evidence indicating a relationship, or nexus, between the veteran's current right knee and left middle finger disorders and service. 3. The veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claims of entitlement to service connection for a right knee disorder and residuals of laceration, left middle finger, are plausible. CONCLUSIONS OF LAW 1. The veteran has not presented a well grounded claim of entitlement to service connection for a right knee disorder, and, therefore, there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not presented a well grounded claim of entitlement to service connection for residuals of laceration, left middle finger, and, therefore, there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Regulatory Background The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Generally, a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for entitlement to service connection is well grounded when there is (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. 498, 506 (1995) (citations omitted), aff'd 78 F.3d 604 (Fed. Cir. 1996). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. In determining whether a claim is well-grounded, the supporting evidence is presumed to be true. King v. Brown, 5 Vet. App. 19, 21 (1993). Once well groundedness has been established, service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires that the evidence show the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required to satisfy the second element. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). II. Evidence Service medical records show no right knee or left middle finger problems at the time of the veteran's entry into service, according to a December 1974 induction medical examination report. Similarly, an associated December 1974 report of medical history notes no such problems. No service outpatient records are of record. A March 1978 separation medical examination report also shows no right knee or left middle finger problems. The associated report of medical history indicates that the veteran admitted to a "trick" or locked knee. Subsequent to service, the claims file contains no records indicating medical treatment for either the veteran's right knee or left middle finger until October 1997, a period of approximately 19 years. A September 1997 VA examination report shows that the veteran alleged a right knee injury playing football in service in 1975, which was placed in a cast for 6 weeks due to swelling. He also reported a left middle finger laceration. Physical examination revealed a full range of motion of the right knee, with no swelling, or deformity. Varus and valgus stress, anterior draw, posterior draw, and Lachman's test were negative. There was a positive medial MacMurray's sign and medial joint line tenderness. The left middle finger had a 2.5 centimeter well-healed surgical scar. There was decreased sensation to light touch from the distal interphalangeal joint to the finger tip. The finger had a full range of motion, with no swelling, deformity, laxity, or instability. Diagnoses were medial meniscal injury, right knee, and left middle finger neuropathy. In an April 1998 statement (VA Form 9), the veteran argued that VA did not have all of his service medical records and that it was not his fault if VA lost them. However, the claims file shows that the RO requested all of the veteran's service medical records from the National Personnel Records Center (NPRC) in September 1997 and that such records contained only the induction and separation medical examination reports, and associated reports of medical history. The RO submitted another request for service medical records in December 1998. A July 1999 reply from NPRC indicated that all available service medical records were sent in the September 1997 correspondence; no additional health records were on file. The veteran testified at a Travel Board hearing before the undersigned member of the Board in November 1999. During the hearing, he stated that he injured his right knee and left middle finger during service. He indicated that he was treated for the knee during service, including a cast and physical therapy, but that he did not mention the knee to the examiner at the time of separation because it was not bothering him that much. He reported that he received no medical treatment for his right knee subsequent to service until 1996, when he was seen by a private physician. He stated that he would submit the medical records associated with the 1996 treatment within 30 days. The veteran reported having his left middle finger stitched in service after cutting it on a piece of equipment. He indicated that he did not report any finger problems to the examiner at the time of his separation examination, and that he received no treatment for that finger since separation from service. A November 1999 RO letter contains a note that no additional evidence was received within 30 days. III. Analysis The foundation of entitlement to VA disability compensation benefits is that a claimant have a current "disability," either due to disease or injury. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999); Caluza, 7 Vet. App. at 506. It is not enough that an injury or disease have occurred in service. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (citing Rabideau v. Derwinski, 2 Vet. App. 141 (1992)). Here, the Board finds sufficient evidence that the veteran currently has a right knee and left middle finger condition. The September 1997 VA examination report indicates that he had a medial meniscal injury and left middle finger neuropathy. Therefore, the Board finds that the first element of a well grounded claim has been met. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. The second prong of a well-grounded claim is that of an inservice injury. In this regard, the Board finds no competent evidence that the veteran had any injuries to his right knee or left middle finger during service. Service medical records are entirely negative for any complaints of, treatment for, or diagnosis of any right knee or left middle finger problems. The veteran's separation medical report notes no such defects; his upper and lower extremities are reported as normal. The Board recognizes that the veteran's March 1978 separation report of medical history shows that he admitted to a "trick" or locked knee. However, that report does not indicate which knee was involved. It is noteworthy that, even if the Board presumes that the veteran injured his right knee and left middle finger in the inservice incidents that he described, his claim would still be not well grounded. The third element of a well grounded claim is medical evidence of a relationship, or nexus, between the inservice injury and the current disability. Id. Here, there is no medical opinion or similar evidence indicating that the veteran's current right knee medial meniscal injury and left middle finger neuropathy are somehow related to service, including to his alleged inservice injuries. The veteran asserts that his current right knee and left middle finger problems are related to inservice injuries, but he is not competent to make such a conclusion; that is a medical opinion as to etiology and, thus, can only be made by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (Appellant cannot meet the burden imposed by 38 U.S.C.A. § 5107(a) as to a relationship between his disability and service because lay persons are not competent to offer medical opinions). In light of the above, the Board must deny the veteran's claims as not well grounded. There is no competent evidence of any right knee or left middle finger injuries during service, and no competent evidence relating his current conditions to service. As such, his claims are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999); Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. at 506. Therefore, the Board cannot decide them on the merits. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well grounded, the Board does not have jurisdiction to adjudicate it). IV. Conclusion In light of the above, his claims seeking entitlement to service connection for a right knee and left middle finger disorder must be denied. Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER The claims of entitlement to service connection for a right knee disorder and residuals of laceration, left middle finger, are denied as not well grounded. A. BRYANT Member, Board of Veterans' Appeals